Super Double-Secret Takedown Injunction
My research on Internet libel takedown orders has profited tremendously from the Lumen Database (formerly ChillingEffects.org), a website to which Google and others archive takedown requests. I’ve seen a couple of orders, though, that purport to bar search engines from posting the orders on Lumen.
That, I think, is an unconstitutional restriction on the search engines’ First Amendment rights. Such gag orders are controversial even when they’re entered in response to national security letters, where there’s a government interest in national security and the underlying order only seeks to gather information from Internet services — they should be unconstitutional when there’s no national security interest and the underlying order is an attempt to take down speech outright. I can understand why libel litigants might want to hide the very existence of the underlying lawsuit. But American civil litigation is supposed to be a publicly open process, and there is no exception to that for libel cases.
One such order, from Clark County, Nev., struck me as especially troubling: It purported to outright command search engines to de-index certain material — even though the search engines were not parties to the case — and ordered them not to submit copies of the order to Lumen. And when I tried to check the authenticity of the order, I was told that the entire court file was sealed, even though Nevada law seems to prohibit such categorical sealing.
I’m pleased to say that yesterday, pro bono counsel Kristen T. Gallagher and Adam D. Hosmer-Henner of McDonald Carano LLP filed a motion on my behalf, seeking the unsealing of the file. (Thanks to my UCLA Scott & Cyan Banister First Amendment Clinic student Stefan Caris Love for his help with the motion.) Here is the text of the motion, in case our readers are interested in such open records questions. Out of deference to the court’s having sealed the case, I’m not mentioning the name of the case or the parties, or enclosing or quoting the underlying injunction. As you can see in Part IV, part of the relief I seek is an order clarifying that, even if the case remains sealed, third parties such as me are not bound by any sealing order.
To read entire article click here.
By Eugene Volokh
Washington Post, Nov 28
About McDonald Carano
In 2024, McDonald Carano celebrates 75 years of serving Nevada’s legal, business, government, and civic communities. More than 60 lawyers and government relations professionals serve state, national, and international clients from our offices in Reno, Las Vegas, and Carson City. McDonald Carano provides legal services and government affairs and advocacy counsel to startups, corporations, trade associations, nonprofits, public entities, high-net-worth individuals, investors, and public-private partnerships throughout Nevada. We are proud to be your Nevada law firm since 1949.
You have chosen to send an email to McDonald Carano. The sending or receipt of this email and the information in it does not in itself create an attorney-client relationship. If you are not already a client, you should not provide us with information that you wish to have treated as privileged or confidential without first speaking to one of our lawyers. If you provide information before we confirm that you are a client and that we are willing and able to represent you, we may not be required to treat that information as privileged, confidential, or protected information, and we may be able to represent a party adverse to you.
I have read this and want to send an email.